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Sam
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Category: UK Tax
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I am trying to work out the resident status for my mother. She

Resolved Question:

I am trying to work out the resident status for my mother.

She is a foreign national that used to live in the UK but moved back home about 20 years ago. She retained a house in the UK for her children to use for University. We have long since moved out but she didn't sell it so that she could come occasionally to see us.

She still spends the vast majority of the time aboard, at the family home. Over the last four tax years, she spent an average of 50-60 days in the UK. However, in the last year (2012-13), she spent 100 days as she attended the birth and Christening of my child.

As she plans to sell her house this year, she is now worried that 2012-13 may turn her into a resident and she might be liable for Capital Gains Tax (even though she would be selling in 2013-14). This year she is back about 40 days - coming to see her grandchild for a couple of weeks and to do some shopping.

What's your view?
Submitted: 10 months ago.
Category: UK Tax
Expert:  Sam replied 10 months ago.

Hi

 

Thanks for your question and asking for me.

 

No she will be fine, as the sale is taking place in this tax year and it was last year that she spent more than 90 days in the UK and she meets non UK taxation on one of two ways

1) Her average visits over the last 4 years were less than 90 days

Lets say 60+60+60+100 = 280/4 = average of 70 days per year (though please note this average over 4 years position has changed with the new residency rules effective from 06/04/2013 when no one year must exceed 90 days )

2) As she will be treated as not resident for this year - then as long as she remains not resident for the next 4 years (so five years in total) then the gain is not subject to UK taxation.

 

She just needs to make sure that she declares this sale within her own countries jurisdiction.


Thanks


Sam

 

 

Customer: replied 10 months ago.

Thanks Sam. That makes sense.


 


Just to confirm - to ensure she stays non-resident this year:


 


If she goes over the 45 days this year, and falls out of the 'Automatic Overseas Test', she would have to go through the Ties test as an Arriver (?)


 


She would therefore have to make sure she doesn't go over the Ties to Days equation.


 


As she went over 90 days in one of the previous two years, that is one. If she stays at my house for more than 16 days (likely), that is two (Accommodation Tie). She doesn't work in the UK, doesn't have a husband or children under 18 in the UK and (just in case) she spends more than 90 days in one country abroad, she qualifies for no more.


 


And that would restrict her to 120 days, if I'm not mistaken?


 


John.

Expert:  Sam replied 10 months ago.

Hi John

 

Yes you almost have it spot on!

 

Up until the 05/04/2013 - the old rules applies, so the only consideration that is needed for the earlier years, id as a measure for the new rules.

 

So - she does not fall into the remit of any of the automatic oversees tests - which would allow non residency (although the second test which looks at when you have not been treated as resident in the last 3 years and will spend less than 46 days in this tax year in the UK - if the answer to this is YES (we know she was definitely not resident, but how many days so far have been spent in the UK since 06/04/2013 and how many more between now and 05/04/2014) if more than 46, then she does not meet the second automatic test and we need to move onto the automatic UK tests.

 

So we would then need to consider the automatic UK tests

1) She did not spend more than 183 days in the UK

2) Yes she did have a home for her use - and its a question of whether she spent more than 91 days consecutive days, of which 30 days sat in this tax year (2013/2014)

But this also considers when there is no oversees home also.

So did Mum spend more than 30 days in this UK home, but retain an oversees home? If she did then this is not an issue, if she does not have an oversees home and spent more than 30 days in the property she owns in 2013/2014 then may fall into being treated as resident for 2013/2014.

3) if you work full time in the UK for more than 365 days - which does not apply.


So then we move onto the sufficient ties test

Now Mum will fall under being treated as "not resident" for the preceding 3 years so we have to establish how many ties she had. This looks at

1) family ties - this does not apply and no husband or children under 18 in the UK

2) Accommodation ties - yes, as she will stay with you, then she either needs to spend less than 16 days each year with you (so maybe visit other family !)or accept this as one tie

3) Work tie- this does not apply

4) 90 day tie - this will apply as Mum did spend more than 90 days in either or both of the last 2 tax years

 

So we have two ties - this then determines that for Mum to be treated as NOT resident for this tax year (2013/2014) and assuming she has not met the Oversees automatic test and not failed on that one UK automatic test - then she is not permitted to spend more than 120 days in the UK! So you final interpretation is correct as long as she does not fail the automatic UK test as shown above.

 

 

Thanks

 

Sam

 

 

 

 

 

 

 

 

 

Sam, Accountant
Category: UK Tax
Satisfied Customers: 12834
Experience: 26 HMRC expertise, PAYE, Self Assessment ,Residency, Capital Gains, CIS ask for Sam Tax
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